The Fight For The Republic In China
by
B.L. Putnam Weale
Part 9 out of 9
another election shall take place immediately, and the convocation
of the House at a fixed date within five months should be effected
to continue the session.
Art. 76. With the exception of high treason, no criminal charges
shall be brought against the President before he has vacated his
office.
Art. 77. The salaries of the President and Vice-President shall be
fixed by law.
CHAPTER VII. THE CABINET
Art. 78. The Cabinet shall be composed of the Cabinet Ministers.
Art. 79. The Premier and the Ministers of the various ministries
shall be called the Cabinet Ministers.
Art. 80. The appointment of the Premier shall be approved by the
House of Representatives.
Should a vacancy in the Premiership occur during the time of
adjournment of the National Assembly, the President may appoint an
Acting-Premier, but it shall be required that the appointment must
be submitted to the House of Representatives for approval within
seven days after the convening of the next session.
Art. 81. Cabinet Ministers shall assist the President and shall be
responsible to the House of Representatives.
Without the counter-signature of the Cabinet Minister to whose
Ministry the Mandate or dispatch applies, the mandate or dispatch
of the President in connection with State affairs shall not be
valid; but this shall not apply to the appointment or dismissal of
the Premier.
Art. 82. When a vote of want of confidence in the Cabinet
Ministers is passed, if the President does not dissolve the House
of Representatives according to the provisions made in Art. 75, he
should remove the Cabinet Ministers.
Art. 83. The Cabinet Ministers shall be allowed to attend both
Houses and make speeches, but in case of introducing bills for the
Executive Department, their delegates may act for them.
CHAPTER VIII. COURTS OF JUSTICE
Art. 84. The Judicial authority of the Republic of China shall be
exercised by the Courts of Justice exclusively.
Art. 85. The organization of the Courts of Justice and the
qualifications of the Judges shall be fixed by law.
The appointment of the Chief-Justice of the Supreme Court should
have the approval of the Senate. Art. 86. The Judiciary shall
attend to and settle all civil, criminal administrative and other
cases, but this does not include those cases which have been
specially provided for by the Constitution or law.
Art. 87. The trial of cases in the law courts shall be conducted
publicly, but those affecting public peace and order or propriety
may be held in camera.
Art. 88. The Judges shall be independent in the conducting of
trials and none shall be allowed to interfere.
Art. 89. Except in accordance with law, judges, during their
continuation of office shall not have their emoluments decreased,
nor be transferred to other offices, nor shall they be removed
from office.
During his tenure of office, no judge shall be deprived of his
office unless he is convicted of crime, or for offences punishable
by law. But the above does not include cases of reorganization of
Judicial Courts and when the qualification of the Judges are
modified. The punishments and fines of the Judicial Officials
shall be fixed by law.
CHAPTER IX. LEGISLATION
Art. 90. The members of both Houses and the Executive Department
may introduce bills of law, but if any bill of law is rejected by
the House it shall not be re-introduced during the same session.
Art. 91. Any bill of law which has been passed by the National
Assembly shall be promulgated by the President within 15 days
after receipt of the same.
Art. 92. Should the President disapprove of any bill of law passed
by the National Assembly, he shall within the period allowed for
promulgation, state the reason of his disapproval and request the
re-consideration of the same by the National Assembly.
If a bill of law has not yet been submitted with a request for
consideration and the period for promulgation has passed; it shall
become law. But the above shall not apply to the case when the
session of the National Assembly is adjourned, or, the House of
Representatives dissolved before the period for the promulgation
is ended.
Art. 93. The law shall not be altered or repealed except in
accordance with the law.
Art. 94. Any law that is in conflict with the Constitution shall
not be valid.
CHAPTER X. NATIONAL FINANCE
Art. 95. The introductions of new taxes and alterations in the
rate of taxation shall be fixed by law.
Art. 96. (Eliminated.)
Art. 97. The approval of the National Assembly must be obtained
for National loans, or the conclusion of agreements which tend to
increase the burden of the National Treasury.
Art. ... Financial bills involving direct obligation on the part
of the citizens shall first be submitted to the House of
Representatives.
Art. 98. The Executive Department of the Government shall prepare
a budget setting forth expenditures and receipts of the Nation for
the fiscal year which shall be submitted to the House of
Representatives within 15 days after the opening of the session of
the National Assembly.
Should the Senate amend or reject the budget passed by the House
of Representatives, it shall request the concurrence of the House
of Representatives in its amendment or rejection, and, if such
concurrence is not obtained, the budget shall be considered as
passed.
Art. 99. In case of special provisions, the Executive Department
may fix in advance in the budget the period over which the
appropriations are to be spread and may provide for the successive
appropriations continuing over this period.
Art. 100. In order to provide for a safe margin for under-
estimates or for items left out of the budget, the Executive
Department may include contingent items in the budget under the
heading of Reserve Fund. The sum expended under the above
provision shall be submitted to the House of Representatives at
the next session for recognition. Art. 101. Unless approved by the
Executive Department, the National Assembly shall have no right to
abolish or curtail any of the following items:
(1) Items in connection with obligations of the Government
according to law.
(2) Items necessitated by the observance of treaties.
(3) Items legally fixed.
(4) Successive appropriations continuing over a period.
Art. 102. The National Assembly shall not increase the annual
expenditures as set down in the budget.
Art. 103. In case the budget is not yet passed, when the fiscal
year begins, the Executive Department may, during this period,
follow the budget for the preceding year by limiting its
expenditures and receipts by one-twelfth of the total amount for
each month.
Art. 104. Should there be a defensive war against foreign
invasion, or should there be a suppression of internal rebellion,
or provide against extraordinary calamity, when it is impossible
to issue writs for summoning the National Assembly, the Executive
Department may adopt financial measures for the emergency, but it
should request the recognition thereof by the House of
Representatives within seven days after the convening of the next
session of the National Assembly.
Art. 105. Orders on the Treasury for payments on account of the
annual expenditures of the Government shall first be passed by the
Auditing Department.
Art. 106. Accounts of the annual expenditures and annual receipts
for each year should first be referred to the Auditing Department
for investigation and then the Executive Department shall report
the same to the National Assembly.
If the account be rejected by the House of Representatives, the
Cabinet shall be held responsible.
Art. 107. The method of organization of the Auditing Department
and the qualification of the Auditors shall be fixed by law.
During his tenure of office, the auditor shall not be dismissed or
transferred to any other duty or his salary be reduced except in
accordance with the law.
The manner of punishment of Auditors shall be fixed by law.
Art. 108. The Chief of the Auditing Department shall be elected by
the Senate. The Chief of the Auditing Department may attend
sittings of both Houses and report on the Audit with explanatory
statements.
CHAPTER XI. AMENDMENTS, INTERPRETATION AND INVIOLABILITY OF THE
CONSTITUTION
Art. 109. The National Assembly may bring up bills for the
amendment of the National Constitution.
Bills of this nature shall not take effect unless approved by two-
thirds of the members of each House present.
No bill for the amendment of the Constitution shall be introduced
unless signed by one-fourth of the members of each House.
Art. 110. The amendment of the National Constitution shall be
discussed and decided by the National Constitutional Conference.
Art. 111. No proposal for a change of the form of Government shall
be allowed as a subject for amendment.
Art. 112. Should there be any doubt as to the meaning of the text
of the Constitution, it shall be interpreted by the National
Constitutional Conference.
Art. 113. The National Constitutional Conference shall be composed
of the members of the National Assembly.
Unless there be a quorum of two-thirds of the total number of the
members of the National Assembly, no Constitutional Conference
shall be held, and unless three-fourths of the members present
vote in favour, no amendment shall be passed. But with regard to
the interpretation of the Constitution, only two-thirds of the
members present is required to decide an issue.
Art. ... The National Constitution shall be the Supreme Law of
the land and shall be inviolable under any circumstances unless
duly amended in accordance with the procedure specified in this
Constitution.
[V] A Chapter on Provincial or local organization is to be
inserted under Chapter ... providing for certain powers and rights
to be given to local governments with the residual power left in
the hands of the central government. The exact text is not yet
settled.
Note: The Mark (*) indicated that the article has already been
formally adopted as a part of the finished Constitution.
The mark (V) indicates that the article has not yet passed through
the second reading.
Those without marks have passed through the second reading on May
28th, 1917. Articles bearing no number are additions to the
original draft as presented to the Conference by the Drafting
Committee.
THE LOCAL SYSTEM
DRAFT SUBMITTED TO PARLIAMENT
The following Regulations on the Local System have been referred
to the Parliamentary Committee for consideration:--
Article 1. The Local System shall embrace provinces and hsien
districts.
Any change for the existing division of provinces and hsien
districts shall be decided by the Senate. As to Mongolia, Tibet,
Chinghai and other places where no provinces and hsien districts
have been fixed, Parliament shall enforce these regulations there
in future.
Art. 2. A province shall have the following duties and rights: (a)
To fix local laws. (b) To manage provincial properties, (c) To
attend to the affairs in connexion with police organization,
sanitation, conservancy, roads, and public works, (d) To develop
education and industry in accordance with the order and mandates
of the Central Government. (e) To improve its navigation and
telegraphic lines, or to undertake such enterprises with the co-
operation of other provinces, (f) To organize precautionary troops
for the protection of local interests, the method of whose
organization, uniforms and arms shall be similar to those of the
National Army. With the exception of the matter of declaring war
against foreign countries, the President shall have no power to
transfer these troops to other provinces: and unless the province
is unable to suppress its own internal troubles, it shall not ask
the Central Government for the service of the National Army, (g)
The province shall defray its own expenses for the administration
and the maintenance of precautionary troops; but the provinces
which have hitherto received subsidies, shall continue to receive
same from the National Treasury with the approval of Parliament.
(h) Land, Title Deed, License, Mortgage, Tobacco and Wine,
Butchery, Fishery and all other principal and additional taxes
shall be considered as local revenues, (i) The province may fix
rates for local tax or levy additional tax on the National Taxes.
(j) The province shall have a provincial treasury. (k) It may
raise provincial public loans. (l) It shall elect a certain number
of Senators, (m) It shall fix regulations for the smaller local
Self-Governing Bodies.
Art. 3. Besides the above rights and privileges, a province shall
bear the following responsibilities:
(a) In case of financial difficulties of the Central Government,
it shall share the burden according to the proportion of its
revenue, (b) It shall enforce the laws and mandates promulgated by
the Central Government, (c) It shall enforce the measures
entrusted by the Central Government, but the latter shall bear the
expenses. (d) In case the local laws and regulations are in
conflict with those of the Central Government the latter may with
the approval of Parliament cancel or modify the same. (e) In case
of great necessity the provincial telegraph, railway, etc., may be
utilized by the Central Government. (f) In case of negligence, or
blunder made by the provincial authorities, which injures the
interests of the nation, the Central Government, with the approval
of Parliament, may reprimand and rectify same, (g) It shall not
make laws on the grant of monopoly and of copyrights; neither
issue bank notes, manufacture coins, make implements of weights
and measures; neither grant the right to local banks to manage the
Government Treasury; nor sign contracts with foreigners on the
purchase or sale of lands and, mines, or mortgage land tax to them
or construct naval harbours or arsenals, (h) All local laws,
budgets, and other important matters shall be reported to the
President from time to time, (i) The Central Government may
transfer to itself the ownership of enterprises or rights which
Parliament has decided should become national, (j) In case of a
quarrel arising between the Central Government and the province,
or between provinces, it shall be decided by Parliament, (k) In
case of refusal to obey the orders of the Central Government, the
President with the approval of Parliament may change the Shenchang
(Governor) or dissolve the Provincial Assembly. (l) The President
with the approval of Parliament may suppress by force any province
which defies the Central Authorities.
Art. 4. A Shenchang shall be appointed for each province to
represent the Central Government in the supervision of the local
administration. The appointment shall be made with the approval of
the Senate, the term of office for the Shenchang shall be four
years, and his annual salary shall be $24,000, which shall be paid
out of the National Treasury.
Art. 5. The administration measures entrusted by the Government to
the Shenchang shall be enforced by the administrative organs under
his supervision, and he shall be responsible for same.
Art. 6. In the enforcement of the laws and mandates of the Central
Government, or of the laws and regulations of his province, he may
issue orders.
Art. 7. The province shall establish the following five
Departments, namely Interior, Police, Finance, Education and
Industry. There shall be one Department Chief for each Department,
to be appointed by the Shenchang.
Art. 8. A Provincial Council shall be organized to assist the
Shenchang to enforce the administrative measures, and it shall be
responsible to the Provincial Assembly for same.
This Council shall be composed of all the Departmental Chiefs, and
five members elected out of the Provincial Assembly. It shall
discuss the Bills on Budget, on administration, and on the
organization, of police forces, submitted by the Shenchang.
Art. 9. If one member of the Council be impeached by the
Provincial Assembly, the Shenchang shall replace him, but if the
whole body of the Council be impeached, the Shenchang shall either
dissolve the Assembly or dismiss all his Departmental Chiefs. In
one session the Assembly shall not be dissolved twice, and after
two months of the dissolution, it shall be convened again.
Art. 10. The organization and election of the Provincial Assembly
shall be fixed by law.
Art. 11. The Provincial Assembly shall have the following duties
and powers: (a) It may pass such laws as allowed by the
Constitution, (b) It may pass the bills on the provincial Budget
and Accounts, (c) It may impeach the members of the Provincial
Council. (d) It may address interpellations or give suggestions to
the Provincial Council. (e) It may elect Members for the
Provincial Council. (f) It may attend to the petitions submitted
by the public.
Art. 12. A Magistrate shall be appointed for each hsien district
to enforce administrative measures. He shall be appointed directly
by the Shenchang, and his term of office shall be three years.
Art. 13. The Central Government shall hold examinations in the
provinces for candidates for the Magistracy. In a province half of
the total number of magistrates shall be natives of the province
and the other half of other provinces; but a native shall hold
office of Magistrate 300 li away from his home.
Art. 14. The organization for the legislative organ of the hsien
district shall be fixed by law.
TARIFF REVISION IN CHINA
The following is a translation of a memorandum prepared by the
Ministry of Agriculture and Commerce regarding abolition of likin
and an increase of the Customs duties:--
THE MEMORANDUM
"Disproportionate taxation on commodities at inland towns and
cities tends to cripple the productive power of a country. Acting
upon this principle, France in the 17th, England, America, Germany
and Austria in the 18th Century abolished such kind of taxation,
the Customs tariff remaining, which is a levy on imports at the
first port of entry. Its purpose is to increase the cost of
production of imported goods and to serve as a protection of
native products (sic). Raw materials from abroad are, however,
exempt from Customs duty in order to provide cheap material for
home manufactures. An altogether different state of affairs,
however, exists in this country. Likin stations are found
throughout the country, while raw materials are taxed. Take the
Hangchow silk for instance. When transported to the Capital for
sale, it has to pay a tax on raw material of 18 per cent. Foreign
imported goods on the other hand, are only taxed at the rate of
five per cent, ad valorem Customs duty at the first port of entry
with another 2.5 per cent, transit duty at one of the other ports
through which the goods pass. Besides these only landing duty is
imposed upon imported goods at the port of destination. Upon
timber being shipped from Fengtien and Antung to Peking, it has to
pay duties at five different places, the total amount of which
aggregates 20 per cent, of its market value, while timber from
American is taxed only ten per cent. Timber from Jueichow to
Hankow and Shanghai is taxed at six different places, the total
amount of duty paid aggregating 17.5 per cent., while timber
imported from abroad to these ports is required to pay Customs
duty only one-third thereof. The above-mentioned rates on native
goods are the minimum. Not every merchant can, however, obtain
such special "exemption," without a long negotiation and special
arrangements with the authorities. Otherwise, a merchant must pay
25 per cent, of the market value of his goods as duty. For this
reason the import of timber into this country has greatly
increased within the last few years, the total amount of which
being valued at $13,000,000 a year. Is this not a great injustice
to native merchants?
THE CHINESE METHOD
"Respecting the improvement of the economic condition of the
people, a country can hardly attain this object without developing
its foreign commerce. The United States of America, Germany and
Japan have one by one abolished their export duty as well as made
appropriations for subsidies to encourage the export of certain
kinds of commodities. We, on the other hand, impose likin all
along the line upon native commodities destined for foreign market
in addition to export duty. Goods for foreign market are more
heavily taxed than for home consumption. Take the Chekiang silk
for instance. Silk for export is more heavily taxed than that for
home use. Different rates of taxation are imposed upon tea for
foreign and home market. Other kinds of native products for export
are also heavily taxed with the result that, within the last two
decades, the annual exports of this country are exceeded by
imports by over Tls. 640,000,000,000. From the 32nd year of the
reign of Kuang Hsu to the 4th year of the Republic, imports exceed
exports on the average by Tls. 120,000,000. These figures speak
for themselves.
LIKIN
"Likin stations have been established at places where railway
communication is available. This has done a good deal of harm to
transportation and the railway traffic. Lately a proposal has been
made in certain quarters that likin stations along the railways be
abolished; and the measure has been adopted by the Peking-Tientsin
and Tientsin-Pukow Railways at certain places. When the towns and
cities throughout the country are connected by railways, there
will be no place for likin stations. With the increase in the
number of treaty ports, the "likin zone" will be gradually
diminished. Thencefrom the proceeds from likin will be decreased
year by year.
"Owing to the collection of likin the development of both home and
foreign trade has been arrested and the people are working under
great disadvantages. Hence in order to develop foreign and home
trade, the Government must do away with likin, which will bring
back business prosperity, and in time the same will enable the
Government to obtain new sources of revenues.
"From the above-mentioned considerations, the Government can
hardly develop and encourage trade without the abolition of likin.
By treaty with Great Britain, America and Japan, the Government
can increase the rate of Customs tariff to cover losses due to the
abolition of likin. The question under consideration is not a new
one. But the cause which has prevented the Government from
reaching a prompt decision upon this question is the fear that,
after the abolition of likin, the proceeds from the increased
Customs tariff would not be sufficient to cover the shortage
caused by the abolition of likin.
COST OF ABOLITION OF LIKIN
But such a fear should disappear when the Authorities remember the
following facts:--
(a) The loss as the result of the abolition of likin: $38,900,000.
(b) The loss as the result of the abolition of a part of duty
collected by the native Customs houses: $7,300,000.
(c) Annual proceeds from different kinds of principal and
miscellaneous taxes which shall be done away with the abolition of
likin $11,800,000.
The above figures are determined by comparing the actual amount of
proceeds collected by the Government in the 3rd and 4th years of
the Republic with the estimated amount in the Budget of the fifth
year. The total amount of loss caused by the abolition of likin
will be $58,000,000.
INCREASE OF CUSTOMS TARIFF
The amount of increase in the Customs tariff which the Government
expects to collect is as follows:--
(a) The increase in import duties $29,000,000.
(b) The increase in export duties Tls. 6,560,000.
The above figures are determined according to the Customs returns
of the 2nd, 3rd, and 4th years of the Republic. By deducting Tls.
2,200,000 of transit duty, the net increase will be Tls.
33,600,000 taels, which is equal to $48,500,000. For the sake of
prudence, allowance of five per cent, of the total amount is made
against any incidental shortage. The net revenue thus increased
would amount to $46,100,000. Against the loss of $58,000,000,
there will be a shortage of some $11,900,000. This, however, will
not be difficult to make good by new sources of revenue as the
result of a tariff revision:--
(a) Tax on goods at the time of manufacture $800,000.
(b) Tax on goods at the time of sale $8,000,000.
(c) Tax on cattle and slaughtering houses $2,000,000.
(d) Tax on foodstuffs $4,000,000.
"Under (a) and (b) are the taxes to be collected on native made
foreign imitation goods and various kinds of luxurious articles.
Under (c) and (d) are taxes which are already enforced in the
provinces but which can be increased to that much by reorganizing
the method of collection. The total sum of the proceeds set forth
under above items will amount to $14,800,000. These will be quite
sufficient to cover the loss caused by the abolition of likin.
A VITAL INTEREST
"As the abolition of likin concerns the vital interest of the
merchants and manufacturers, it should be carried out without
delay. The commercial and industrial enterprises of the country
can only thrive after likin is abolished and only then can new
sources of revenue be obtained. This measure will form the
fundamental factor of our industrial and economical development.
But one thing to which we should like to call the special
attention of the Government is the procedure to be adopted to
negotiate with the Foreign countries respecting the adoption of
this measure. The first step in this connexion should be the
increase of the present Customs tariff to the actual five per
cent, ad valorem rate. When this is done, proposal should be made
to the Powers having treaty relations with us concerning the
abolition of likin and revision of Customs tariff. The transit
destination duties on imported goods should at the same time be
done away with. This would not entail any disadvantage to the
importers of foreign goods and any diplomatic question would not
be difficult of solution. Meantime preparatory measures should be
devised for reorganizing the method of collecting duties set forth
above so that the abolition of likin can take place as soon as the
Government obtains the consent of the foreign Powers respecting
the increase of Customs tariff."
MEMORANDUM
THE LEADING OUTSTANDING CASES BETWEEN CHINA AND THE FOREIGN POWERS
(Author's note. The following memorandum was drawn up by Dr. C. C.
Wu, Councillor at the Chinese Foreign Office and son of Dr. Wu
Ting-fang, the Foreign Minister, and is a most competent and
precise statement. It is a noteworthy fact that not only is Dr. C.
C. Wu a British barrister but he distinguished himself above all
his fellows in the year he was called to the Bar. It is also
noteworthy that the Lao Hsi-kai case does not figure in this
summary, China taking the view that French action throughout was
ultra vires, and beyond discussion.)
BY DR. C. C. WU
Republican China inherited from imperial China the vast and rich
territory of China Proper and its Dependencies, but the
inheritance was by no means free from incumbrances as in the case
of Outer Mongolia, Tibet and Manchuria, and other impediments in
the form of unfavourable treaty obligations and a long list of
outstanding foreign cases affecting sovereign and territorial
rights.
I have been asked by the Editor of the North-China Daily News to
contribute an article on some of the outstanding questions between
China and foreign powers, instancing Tibet, Manchuria, Mongolia,
and to give the Chinese point of view on these questions. Although
the subject is a delicate one to handle, particularly in the
press, being as it is one in which international susceptibilities
are apt to be aroused, I have yet accepted the invitation in the
belief that a calm and temperate statement of the Chinese case
will hurt no one whose case will bear public discussion but will
perhaps do some good by bringing about a clear understanding of
the points at issue between China and the foreign Powers
concerned, and thus facilitating an early settlement which is so
earnestly desired by China. I may say that I have appreciated the
British sense of justice and fairplay displayed by the "North-
China Daily News" in inviting a statement of the Chinese case in
its own columns on questions one of which concerns British
interests in no small degree, and the discussion cannot be
conducted under a better spirit than that expressed in the motto
of the senior British journal in the Far East: "Impartial not
Neutral."
1 DEGREE MANCHURIA
The treaty between China and Japan of 1915 respecting South
Manchuria and Eastern Inner Mongolia giving that power special
rights and privileges in those regions has given rise to many
knotty problems for the diplomatists of the two countries to
solve. Two of such problems are mentioned here.
JAPANESE POLICE BOXES IN MANCHURIA AND MONGOLIA
Since the last days of the Tsings, the Japanese have been
establishing police boxes in different parts of South Manchuria
and Eastern Inner Mongolia always under protest of the local and
Peking authorities. Since the treaty of 1915, a new reason has
become available in the right of mixed residence given to Japanese
in these regions. It is said that for the protection and control
of their subjects, and indeed for the interest of the Chinese
themselves, it is best that this measure should be taken. It is
further contended that the stationing of police officers is but a
corollary to the right of exterritoriality, and that it is in no
way a derogation of Chinese sovereignty.
It is pointed out by the Chinese Government that in the treaty of
1915, express provision is made for Japanese in South Manchuria
and Eastern Inner Mongolia to submit to the police laws and
ordinances and taxation of China (Article 5). This leaves the
matter in no doubt. If the Japanese wish to facilitate the Chinese
police in their duty of protection and control of the Japanese,
they have many means at their command for so doing. It is
unnecessary to point out that the establishment of foreign police
on Chinese soil (except in foreign settlements and concessions
where it is by the permission of the Chinese Government) is, to
our thinking, at any rate, a very grave derogation to China's
sovereign rights. Furthermore, from actual experience, we know
that the activities of these foreign police will not be confined
to their countrymen; in a dispute between a Chinese and a Japanese
both will be taken to the Japanese station by the Japanese
policeman. This existence of an imperium in imperio, so far from
accomplishing its avowed object of "improving the relations of the
countries and bringing about the development of economic interests
to no small degree," will, it is feared, be the cause of continual
friction between the officials and people of the two countries.
As to the legal contention that the right of police control is a
natural corollary to the right of exterritoriality, it must be
said that ever since the grant of consular jurisdiction to
foreigners by China in her first treaties, this is the first time
that such a claim has been seriously put forward. We can only say
that if this interpretation of exterritoriality is correct the
other nations enjoying exteriorality in China have been very
neglectful in the assertion of their just rights.
In the Chengchiatun case, the claim of establishing police boxes
wherever the Japanese think necessary was made one of the demands.
The Chinese Government in its final reply which settled the case
took the stand as above outlined.
It may be mentioned in passing that in Amoy the Japanese have also
endeavoured to establish similar police rights. The people of that
city and province, and indeed of the whole country, as evidenced
by the protests received from all over China, have been very much
exercised over the matter. It is sincerely hoped that with the
undoubted improvement of relations between the two countries
within the last several months, the matter will be smoothly and
equitably settled.
LEGAL STATUS OF KOREANS IN CHIENTAO
The region which goes by the name of Chientao, a Japanese
denomination, comprises several districts in the Yenchi Circuit of
Kirin Province north of the Tumen Kiang (or the Tiumen River)
which here forms the boundary between China and Korea. For over
thirty years Koreans have been allowed here to cultivate the waste
lands and acquire ownership therein, a privilege which has not
been permitted to any other foreigners in China and which has been
granted to these Koreans on account of the peculiar local
conditions. According to reliable sources, the Korean population
now amounts to over 200,000 which is more than the Chinese
population itself. In 1909 an Agreement, known as the Tumen Kiang
Boundary Agreement, was arrived at between China and Japan, who
was then the acknowledged suzerain of Korea, dealing, inter alia,
with the status of these Koreans. It was provided that while
Koreans were to continue to enjoy protection of their landed
property, they were to be subject to Chinese laws and to the
jurisdiction of Chinese courts. The subsequent annexation of Korea
did not affect this agreement in point of international law, and
as a matter of practice Japan has adhered to it until September,
1915. Then the Japanese Consul suddenly interfered in the
administration of justice by the local authorities over the
Koreans and claimed that he should have jurisdiction.
The Japanese claim is based on the Treaty Respecting South
Manchuria and Eastern Inner Mongolia signed in May, 1915, article
5 of which provides that civil and criminal cases in which the
defendants are Japanese shall be tried and adjudicated by the
Japanese consul.
The Chinese view is that this article is inapplicable to Koreans
in this region and that the Tumen Kiang Agreement continues in
force. This view is based on a saving clause in article 8 of the
Treaty of 1915 which says that "all existing treaties between
China and Japan relating to Manchuria shall, except where
otherwise provided for by treaty, remain in force."
In the first place, the origin of the Tumen Kiang Agreement
supports this view. When the Japanese assumed suzerainty over
Korea they raised certain questions as to the boundary between
China and Korea. There were also outstanding several questions
regarding railways and mines between China and Japan. Japan
insisted that the boundary question and the railway and mining
questions be settled at the same time. As a result, two agreements
were concluded in 1909 one respecting the boundary question, the
Tumen Kiang Agreement, and the other respecting railways and mines
whereby Japan obtained many new and valuable privileges and
concessions, such as the extension of the Kirin-Changchun Railway
to the Korean frontier, the option on the Hsinminfu-Fakumen line,
and the working of the Fushun and Yentai mines, while in return
China obtained a bare recognition of existing rights, namely the
boundary between China and Korea and the jurisdiction over the
Koreans in the Yenchi region. The two settlements were in the
nature of quid pro quo though it is clear that the Japanese side
of the scale heavily outweighed that of the Chinese. Now Japan
endeavours to repudiate, for no apparent reason so far as we can
see, the agreement which formed the consideration whereby she
obtained so many valuable concessions.
Secondly, while Koreans are now Japanese subjects, it is contended
by the Chinese that the particular Koreans inhabiting the Yenchi
region are, as regards China, in a different position from
Japanese subjects elsewhere. These Koreans enjoy the rights of
free residence and of cultivating and owning land in the interior
of China, rights denied to other foreigners, including Japanese
who, even by the new treaty, may only lease land in South
Manchuria. For this exceptional privilege, they are subject to the
jurisdiction of Chinese laws and Chinese courts, a duty not
imposed on other foreigners. It would be "blowing hot and cold at
the same time" in the language of English lawyers if it is sought
to enjoy the special privileges without performing the duties.
Thirdly, Japanese under the Treaty of 1915 are required to
register their passports with the local authorities. On the other
hand, Koreans in Yenchi have never been nor are they now required
to procure passports. This would seem to be conclusive proof that
Koreans in that region are not within the provisions of the treaty
of 1915 but are still governed by the Tumen Kiang Agreement.
The question is something more than one of academic or even merely
judicial importance. As has been stated, the Koreans in Yenchi
outnumber the Chinese and the only thing that has kept the region
Chinese territory in fact as well as in name is the possession by
the Chinese of jurisdiction over every inhabitant, whether Chinese
or Korean. Were China to surrender that jurisdiction over a
majority of those inhabitants, it would be tantamount to a cession
of territory.
2 DEGREES MACAO
The dispute between China and Portugal over the Macao question has
been one of long standing. The first treaty of commerce signed
between them on August 13,1862, at Tientsin, was not ratified in
consequence of a dispute respecting the Sovereignty of Macao. By a
Protocol signed at Lisbon on March 26, 1887, China formally
recognized the perpetual occupation and government of Macao and
its dependencies by Portugal, as any other Portuguese possession;
and in December of the same year, when the formal treaty was
signed, provision was made for the appointment of a Commission to
delimit the boundaries of Macao; "but as long as the delimitation
of the boundaries is not concluded, everything in respect to them
shall continue as at present without addition, diminution, or
alteration by either of the Parties."
In the beginning of 1908, a Japanese steamer, the Tatsu Maru,
engaged in gun-running was captured by a Chinese customs cruiser
near the Kau-chau archipelago (Nove Ilhas). The Portuguese
authorities demanded her release on the ground that she was seized
in Portuguese territorial waters thus raising the question of the
status of the waters surrounding Macao.
In the same year the Portuguese authorities of Macao attempted the
imposition of land tax in Maliaoho, and proposed to dredge the
waterways in the vicinity of Macao. The Chinese Government
thereupon instructed its Minister in France, who was also
accredited to Portugal, to make personal representations to the
Portuguese Foreign Office in regard to the unwarrantable action of
the local Portuguese authorities. The Portuguese Government
requested the withdrawal of Chinese troops on the Island of Lappa
as a quid pro quo for the appointment of a new Demarcation
Commissioner, reserving to itself the right to refer to the Hague
Tribunal any dispute that may arise between the Commissioners
appointed by the respective Governments.
After protracted negotiations it was agreed between the Chinese
Minister and the Portuguese Government by an exchange of notes
that the respective Governments should each appoint a Demarcation
Commissioner to delimit the boundaries of Macao and its
dependencies in pursuance of the Lisbon Protocol and Article 2 of
the Sino-Portuguese Treaty of 1887, subject to the decision of
their respective Governments.
THE PORTUGUESE CLAIM
In February, 1909, Portugal appointed General Jaoquim Machado and
China Mr. Kao Erh-chien as their respective Commissioners and they
met at Hongkong in June of the same year.
The Portuguese claim consisted of the whole of the Peninsula of
Macao as far north as Portas do Cerco, the Island of Lappa, Green
Island (Ilha Yerde), Ilhas de Taipa, Ilha de Coloane, Ilha
Macarira, Ilha da Tai-Vong-Cam, other small islands, and the
waters of Porto Interior. The Portuguese Commissioner also
demanded that the portion of Chinese territory between Portas do
Cerco and Peishanling be neutralized.
In the absence of evidence, documentary or otherwise, China could
not admit Portugal's title to half the territory claimed, but was
prepared to concede all that part of the Peninsula of Macao south
of Portas do Cerco which was already beyond the limits of the
original Portuguese Possession of Macao, and also to grant the
developed parts of Ilhas de Coloane as Portuguese settlements. The
ownership of territorial waters was to remain vested in China.
The negotiations having proved fruitless were transferred to
Lisbon but on the outbreak of the Revolution in Portugal they were
suspended. No material progress has been made since.
3 DEGREES TIBET
In November, 1911, the Chinese garrison in Lhassa, in sympathy
with the revolutionary cause in China, mutinied against Amban
Lien-yu, a Chinese Bannerman, and a few months later the Tibetans,
by order of the Dalai Lama, revolted and besieged the Chinese
forces in Lhassa till they were starved out and eventually
evacuated Tibet. Chinese troops in Kham were also ejected. An
expedition was sent from Szechuan and Yunnan to Tibet, but Great
Britain protested and caused its withdrawal.
In August, 1912, the British Minister in Peking presented a
Memorandum to the Chinese Government outlining the attitude of
Great Britain towards the Tibetan question. China was asked to
refrain from dispatching a military expedition into Tibet, as the
re-establishment of Chinese authority would, it is stated,
constitute a violation of the Anglo-Chinese Treaty of 1906.
Chinese suzerainty in regard to Tibet was recognized. But Great
Britain could not consent to the assertion of Chinese sovereignty
over a State enjoying independent treaty relations with her. In
conclusion, China was invited to come to an agreement regarding
Tibet on the lines indicated in the Memorandum, such agreement to
be antecedent to Great Britain's recognition of the Republic.
Great Britain also imposed an embargo on the communications
between China and Tibet via India.
In deference to the wishes of the British Government, China at
once issued orders that the expeditionary force should not proceed
beyond Giamda. In her reply she declared that the Chinese
Government had no intention of converting Tibet into another
province of China and that the preservation of the traditional
system of Tibetan government was as much the desire of China as of
Great Britain. The dispatch of troops into Tibet was, however,
necessary for the fulfilment of the responsibilities attaching to
China's treaty obligations with Great Britain, which required her
to preserve peace and order throughout that vast territory, but
she did not contemplate the idea of stationing an unlimited number
of soldiers in Tibet. China considered that the existing treaties
defined the status of Tibet with sufficient clearness, and
therefore there was no need to negotiate a new treaty. She
expressed the regret that the Indian Government had placed an
embargo on the communications between China and Tibet via India,
as China was at peace with Great Britain and regretted that Great
Britain should threaten to withhold recognition of the Republic,
such recognition being of mutual advantage to both countries.
Finally, the Chinese Government hoped that the British Government
would reconsider its attitude.
THE SIMLA CONFERENCE
In May, 1913, the British Minister renewed his suggestion of the
previous year that China should come to an agreement on the
Tibetan question, and ultimately a Tripartite Conference was
opened on October 13, at Simla with Mr. Ivan Chen, Sir Henry
McMahon, and Lonchen Shatra as plemipotentiaries representing
China, Great Britain, and Tibet, respectively.
The following is the substance of the Tibetan proposals:--
1. Tibet shall be an independent State, repudiating the Anglo-
Chinese Convention of 1906.
2. The boundary of Tibet in regard to China includes that portion
of Sinkiang south of Kuenlun Range and Altyn Tagh, the whole
territory of Chinghai, the western portion of Kansuh and Szechuan,
including Tachienlu, and the northwestern portion of Yunnan,
including Atuntzu.
3. Great Britain and Tibet to negotiate, independent of China, new
trade regulations.
4. No Chinese officials and troops to be stationed in Tibet.
5. China to recognize Dalai Lama as the head of the Buddhist
Religion and institutions in Mongolia and China.
6. China to compensate Tibet for forcible exactions of money or
property taken from the Tibetan Government.
The Chinese Plenipotentiary made the following counter-proposals:--
1. Tibet forms an integral part of Chinese territory and Chinese
rights of every description which have existed in consequence of
this integrity shall be respected by Tibet and recognized by Great
Britan. China engages not to convert Tibet into a province and
Great Britain not to annex Tibet or any portion of it.
2. China to appoint a Resident at Lhassa with an escort of 3,600
soldiers.
3. Tibet undertakes to be guided by China in her foreign and
military affairs and not to enter into negotiations with any
foreign Power except through the intermediary of China but this
engagement does not exclude direct relations between British Trade
Agents and Tibetan authorities as provided in the Anglo-Chinese
Convention of 1906.
4. Tibet to grant amnesty to those Tibetans known for their pro-
Chinese inclinations and to restore to them their property.
5. Clause 5 of Tibetan claims can be discussed.
6. Revision of Trade Regulations of 1893 and 1908, if found
necessary, must be made by all the parties concerned.
7. In regard to the limits of Tibet China claims Giamda and all
the places east of it.
THE BOUNDARY DEADLOCK
The British plenipotentiary sustained in the main the Tibetan view
concerning the limits of Tibet. He suggested the creation of Inner
and Outer Tibet by a line drawn along the Kuenlun Range to the
9eth longitude, turning south reaching a point south of the 34th
latitude, then in south-easterly direction to Niarong, passing
Hokow, Litang, Batang in a western and then southern and
southwestern direction to Rima, thus involving the inclusion of
Chiamdo in Outer Tibet and the withdrawal of the Chinese garrison
stationed there. He proposed that recognition should be accorded
to the autonomy of Outer Tibet whilst admitting the right of the
Chinese to re-establish such a measure of control in Inner Tibet
as would restore and safeguard their historic position there,
without in any way infringing the integrity of Tibet as a
geographical and political entity. Sir Henry McMahon also
submitted to the Conference a draft proposal of the Convention to
the plenipotentiaries. After some modification this draft was
initialled by the British and Tibetan delegates but the Chinese
delegate did not consider himself authorized to do so. Thereupon
the British member after making slight concessions in regard to
representation in the Chinese Parliament and the boundary in the
neighbourhood of Lake Kokonor threatened, in the event of his
persisting in his refusal, to eliminate the clause recognizing the
suzerainty of China, and ipso facto the privileges appertaining
thereto from the draft Convention already initialled by the
British and Tibetan plenipotentiaries. In order to save the
situation, the Chinese delegate initialled the documents, but on
the clear understanding that to initial and to sign were two
different things and that to sign he must obtain instructions from
his Government.
China, dissatisfied with the suggested division into an Inner and
Outer Tibet the boundaries of which would involve the evacuation
of those districts actually in Chinese effective occupation and
under its administration, though otherwise in accord with the
general principles of the draft Convention, declared that the
initialled draft was in no way binding upon her and took up the
matter with the British Government in London and with its
representative in Peking. Protracted negotiations took place
thereafter, but, in spite of repeated concessions from the Chinese
side in regard to the Chinese side in regard to the boundary
question, the British Government would not negotiate on any basis
other than the initialled convention. On July 3 an Agreement based
on the terms of the draft Convention but providing special
safeguards for the interests of Great Britain and Tibet in the
event of China continuing to withhold her adherence, was signed
between Great Britain and Tibet, not, however, before Mr. Ivan
Chen had declared that the Chinese Government would recognize any
treaty or similar document that might then or thereafter be signed
between Great Britain and Tibet.
CHINA'S STANDPOINT
With the same spirit of compromise and a readiness to meet the
wishes of the British Government and even to the extent of making
considerable sacrifices in so far as they were compatible with her
dignity, China has more than once offered to renew negotiations
with the British Government but the latter has up to the present
declined to do so. China wants nothing more than the re-
establishment of Chinese suzerainty over Tibet, with recognition
of the autonomy of the territory immediately under the control of
the Lhassa Government; she is agreeable to the British idea of
forming an effective buffer territory in so far as it is
consistent with equity and justice; she is anxious that her trade
interest should be looked after by her trade agents as do the
British, a point which is agreeable even to the Tibetans though
apparently not to the British; in other words, she expects that
Great Britain would at least make with her an arrangement
regarding Tibet which should not be any less disadvantageous to
her than that made with Russia respecting Outer Mongolia.
Considering that China has claimed and exercised sovereign rights
over Tibet, commanded the Tibetan army, supervised Tibetan
internal administration, and confirmed the appointments of Tibetan
officials, high and low, secular and even ecclesiastical, such
expectations are modest enough, surely. At the present moment,
with communication via India closed, with no official
representative or agent present, with relations unsettled and
unregulated, the position of China vis-a-vis Tibet is far from
satisfactory and altogether anomalous, while as between China and
Great Britain there is always this important question outstanding.
An early settlement in a reciprocal spirit of give and take and
giving reasonable satisfaction to the legitimate aspirations and
claims of all parties is extremely desirable.
4 DEGREES OUTER MONGOLIA
The world is more or less acquainted with the events in Urga in
December, 1911, and the proclamation of independence of Outer
Mongolia with Jetsun Dampa Hutukhtu as its ruler. By the Russo-
Chinese Declaration of November 5, 1913, and the Tripartite
Convention of Kiakhta of 1914 China has re-established her
suzerainty over Outer Mongolia and obtained the acknowledgement
that it forms a part of the Chinese territory. There remains the
demarcation of boundary between Inner and Outer Mongolia which
will take place shortly, and the outstanding question of the
status of Tannu Uriankhai where Russia is lately reported to be
subjecting the inhabitants to Russian jurisdiction and expelling
Chinese traders.
The Tannu Uriankhai lands, according to the Imperial Institutes of
the Tsing Dynasty, were under the control of the Tartar General of
Uliasutai, the Sain Noin Aimak, the Jasaktu Khan Aimak and the
Jetsun Dampa Hutkhta, and divided into forty-eight somons
(tsoling). Geographically, according to the same authority, Tannu
Uriankhai is bounded on the north by Russia, east by Tushetu Khan
Aimak, west by the various aimks of Kobdo, and south by Jasaktu
Khan Aimak. By a Joint Demarcation Commission in 1868 the Russo
Chinese boundary in respect to Uriankhai was denmited and eight
wooden boundary posts were erected to mark their respective
frontiers.
In 1910, however, a Russian officer removed and burnt the boundary
post at Chapuchi Yalodapa. The matter was taken up by the then
Waiwupu with the Russian Minister. He replied to the effect that
the limits of Uriankhai were an unsettled question and the Russian
Government would not entertain the Chinese idea of taking
independent steps to remark the boundary or to replace the post
and expressed dissatisfaction with the work of the Joint
Demarcation Commission of 1868, a dissatisfaction which would seem
to be somewhat tardily expressed, to say the least. The case was
temporarily dropped on account of the secession of Uliasutai from
China in the following year.
While Uriankhai forms part of Autonomous Outer Mongolia, yet since
Outer Mongolia is under China's suzerainty, and its territory is
expressly recognized to form part of that of China, China cannot
look on with indifference to any possible cession of territory by
Outer Mongolia to Russia. Article 3 of the Kiakhta Agreement,
1915, prohibiting Outer Mongolia from concluding treaties with
foreign powers respecting political and territorial question
acknowledges China's right to negotiate and make such treaties. It
is the firm intention of the Chinese Government to maintain its
territorial integrity basing its case on historical records, on
treaty rights and finally on the principle of nationality. It is
notorious that the Mongols will be extremely unwilling to see
Uriankhai incorporated into the Russian Empire. While Russia is
spending countless lives and incalculable treasure in fighting for
the sacred principle of nationality in Europe, we cannot believe
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